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District Court 9 June 2015

Genoli v R (No 2)

[2015] NSWDC 239

Theft & propertyDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEALS AGAINST SENTENCE CORRECTION OF EARLIER ORDERS

Citation: Genoli v R (No 2) [2015] NSWDC 239
Court: District Court of New South Wales
Date: 9 June 2015
Judge: Cogswell SC DCJ

Background

The appellant had been sentenced by a Magistrate on several criminal matters, including offences under Commonwealth legislation. He appealed against those sentences to the District Court. Two of the appeal grounds concerned offences under New South Wales law (destroy or damage property, and contravene an apprehended domestic violence order).

By the time the appeal was heard, the sentences for those two NSW offences had already been served. The appellant sought leave to withdraw those grounds of appeal, which was granted.

The remaining and substantive matter before the District Court concerned the sentence imposed for the Commonwealth offence. The court had to determine whether the Magistrate's sentence should stand or be replaced.

  • Whether leave should be granted to withdraw the appeals against sentence for the property damage and ADVO contravention offences, given those sentences had expired.
  • Whether the sentence imposed by the Magistrate for the Commonwealth offence should be set aside on appeal under the Crimes (Appeal and Review) Act 2001 (NSW).
  • What sentence or order was appropriate in substitution under s 20(1)(a) of the Crimes Act 1914 (Cth), which permits a court to release an offender without passing sentence upon the giving of a recognizance (a formal undertaking with conditions).

Decision

The District Court granted leave to the appellant to withdraw his appeals against the property damage and ADVO offences, noting that the sentences had expired and no useful purpose would be served by pursuing them.

On the Commonwealth offence, the court allowed the appeal against sentence and set aside the Magistrate's custodial sentence. Rather than resentencing in the conventional way, the court applied s 20(1)(a) of the Crimes Act 1914 (Cth), a provision that allows a federal court or a court exercising federal jurisdiction to release an offender without formally passing sentence, provided the offender gives a recognizance (a security, akin to a formal promise) to comply with specified conditions.

The court imposed a recognizance of $100 without surety (meaning no third party was required to guarantee it). The conditions attached required the appellant to be of good behaviour for twelve months, to comply with supervision by NSW Community Corrections, to report to the Taree Community Corrections office within seven days of release from custody, and to notify the court of any change of address. The court also recorded that time already served in custody had been taken into account in fashioning the outcome.

Orders Made

  • Leave granted to withdraw appeals against sentence for the property damage and ADVO contravention offences.
  • The Magistrate's sentence on the Commonwealth offence was set aside.
  • The appellant was released without sentence being passed, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), upon giving a recognizance of $100 (without surety), subject to the following conditions for twelve months:
  • Be of good behaviour.
  • Notify the court Registrar of any change of address.
  • Attend court if called upon.
  • Accept supervision and reasonable directions from NSW Community Corrections regarding finance, domestic violence, alcohol, drugs, and gambling.
  • Report to Taree Community Corrections within seven days of release from custody.
  • Time served in custody was noted as having been taken into account.

Key Takeaways

  • The District Court applied s 20(1)(a) of the Crimes Act 1914 (Cth) to substitute a conditional release order for a custodial sentence imposed by a Magistrate on a Commonwealth offence, without formally passing any sentence.
  • A recognizance under s 20(1)(a) of the Commonwealth Act requires the offender to provide a specified security, even where no surety (guarantor) is nominated. In this case the court fixed that amount at $100.
  • Under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the District Court on a sentence appeal holds power to set aside a lower court's sentence and substitute its own order, including an order under Commonwealth sentencing provisions where the offence is a federal matter.
  • Where sentences have expired before an appeal is determined, leave to withdraw those grounds may be granted without substantive consideration of their merits.
  • Time spent in pre-sentence custody remained a relevant consideration even where the court's ultimate order was a conditional release rather than a term of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)
- Crimes Act 1914 (Cth), s 20(1)(a)

Cases cited: None cited in the judgment.